Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-13

would pay him for it. Beard and Helm
went to Weatherford to consult lawyer
and appellant took the wood. There was
some conflict as to whether all the wood
was on Boards land, but the jury having
found that it was, we will take Boards
version. 1t was shown that Frost
had contract with appellant to
cut and deliver wood to it.
But the 400 cords was not delivered to it
and at the time of the settlement between
! Frost and Beard it had not been cut the
I size required by his contract. The only
charge complained of is the instruction
that if the wood belonged TO Beard and
appellant took it, the jury should findifor
Beard. The instruction was correct as
principle Of law, and if it did not 60 far
enough, the defendant should have asked
| for special instruction. We think
! by taking all of the facts into considera-
ton lthat there was sufficient title in
Beard to maintain the case. That Frost
was indebted to him and agreed to settle
| by turning over the wood, the wood was
already on Boards land and constructive
| ly in his possession and served the pur-
pose of q delivery. Boards acceptance
of the offer of the wood operated as a
complete change of title. Appellant holds
that as Frost reserved the right to re-
deem, appellee was q mere Pledge, but
it is recognized rule that the Pledge can
maintain suit against q mere wrong
doer and tresspasser. Appellant claims
J that the amount recovered, should, after
| satisfying Boards claim, 60 to the gen
eral owner, but as to what he should do
with the money recovered did not come
before the court. There is no proof that
the wood was sold to appellant and it had
no claim on it. The fact of absconding
shows that he abandoned all claim to pay
Boards debt, and the wood was passed in
lieu of it. The Judgment is therefore
affirmed.
j. E. Rohrbough ct al. vs.. Leopold
Bros. & Co., from Grayson; opinion by
Gaines, A. j. The facts of the case are as
follows: Franklin bought lot of goods
amounting to $1,000 of appellees' agent.
Appellees sent an invoice but did not
send the goods. On seeing the invoice
Franklin telegraphed them not to ship the
goods until he arrived in Chicago. When
in Chicago he went to appellees' store,
looked over the goods he ordered and in
addition to them bought about $500
worth more. One of appellees, after the
goods were selected, asked Franklin as to
his financial standing. He said he was
worth about S21 1000 and owed about
$4,000. The goods were then shipped.
This was in August, 1883. On September
| 3, 1888, Franklin made an assignment to
Appellant RohrbOugh. Appellees sued to
rescind their contract and sued out
writ of seQuestration against the goods
in the hands of Rohrbough, who gave
replevy bond for them with Schneider &
Lew as sureties. The court erred in not
quashing the writ of sequestratiOn on the
ground of insutticienCy of the bond, as it
did not give the parties TO the suit and
| the bond was made payable to Rohrbough
& Franklin without designating them as
defendants, and as it is remedy equally
stringent with attachment il should
conform strictly with the law. The
court did not err in admitting the testi-
mOny of Franklin as to an agreement
with Leon & II. Blum made immediately
after he executed the assignment by
which Franklin was 10 sell the goods to
the Blums and sell them for those parties,
| because it was shown that this agreement
was contemplated at the time of the sale
/ of goods by appellees and the testimony
was admissible to establish the allega
lions of fraud. AppelIees had right to
recover the goods from RohrbOugh be-
cause it is rule that where an owner is
induced by fraud to part with the posses
sion and not the title, he can recover
even against purchaser for value
! Appellants claim that the court erred
in instructing the jury that there must
| be delivery of goods to Franklin to con-
stitute the sale, without explaining what
constituted delivery. The court also
erred IN refusing to instruct to the effect
that the first sale of the $1,000 bill of
goods was complete and that no subse-
quent representations would entltle ap-
pellees to rescind the contract. The evil
dence shows that appellee's held back
the goods after the first sale, presumably
because they did not know Franklin, as
they had never dealt with him, and that
sale was not cOnsummated because both
parties had not agreed to it. We ind un-
controVertibIy true that the first sale was
not complete. The evidence was amply
sufficient to sustain the verdict and
we find no error except in overruling the
motion to quash the writ Of sequestration
and in giving Judgment against the sure
ties on the bond. The Judgment is
affirmed as to Rohrbough and reversed
and dismissed as to Schneider and Levy.
/ D. B. Grigsby VS.. Jefferson Peak, from
D6llaS; opinion pY OIayIOns y. Lie Ieau-
ing facts in this case are stated in the
case of Caruth VS.. Grigsby and Grlgsby
vs.. Caruth, 81 Texas, 259-273.) Every
question but one raised in this case was
decided adversely to appellee. The ques'
ton not decided arises on the following
facts:
l. The land in controversy is part OF
the community property of John Grigsby
and Louisa, his wife.
2. John Grigsby died in l841, leaving
nine children-seven by former wife
and two, D. B. and Emeline Grigsby, BY
, his wife Louisa.
3. The entire land in controversy in this
, action belonging to John and Louiss
GrigsbY was partitioned by the probate
: having the administration Of his estate
! among his nine children, each taking ar
2 equal share.
I 4. There is no partition between the
estates of John and Louisa Grigsby anC
| that made purported to be the estate o
e John Grigsby.
d 5. Louisa Grigsby having married afte
, his death. had one child, Maria Louise